Friday, November 5, 2010

Misreading the Constitution

I have continued my optimistic, if quixotic, quest to bring civility and open debate to the Internet by visiting sites I don't agree with. Recently I have been spending time at the Volokh Conspiracy, a collective blog by a group of right-wing libertarian law professors. I am pleased to report that I haven't been banned, and that the tone is generally non-abusive and the opinions non-uniform. (There is one guy who referred to "Sonia Sodomizer" and commented on the "Muslim-in-Chief," but he doesn't really fit in there.)

In fact, I am finding this site a bit addictive, because it's actually possible to have a serious discussion there, though so far neither I nor anyone else appears to have been convinced. I did have a sudden intellectual epiphany, though, that I want to tell you about.

It was during discussion of a rather pointless post about a rather silly statement by Rep. Peter DeFazio that he was investigating articles of impeachment against Chief Justice Roberts. Part of the reason was the Citizens United decision immortalized in the last State of the Union address, in which a 5-4 majority struck down limits on corporations' political advertising as violations of the First Amendment.

There was some huffing and puffing about DeFazio (as if no one had ever proposed impeaching a Supreme Court Chief Justice before), and then talk turned to Citizens United. That led to this exchange, with me in italics:

Let me reframe it this way: Suppose (arguendo, as I believe they say) that CU results in big corporations and billionaires having a dominant influence on democratic elections. What would your response be? 1) I’m happy, because it would help my party, and the ends justify the means. 2) I’m happy, because big corporations and billionaires are smarter than average people and should determine policy. 3) I’m unhappy, and I would support legislation to reduce the effect of money, even though it might hurt my party. 4) I don’t care, because the assumption is wildly implausible.

You omit option #5: It doesn’t matter whether I’m happy or unhappy because free speech is not contingent on my approval of the speech.(Of your four choices, I’d go with #4, however.)

So the fact that big corporations and the rich can (hypothetically) take over the electoral process is not something we should do anything about? We shouldn’t do anything if (hypothetically) democracy is a sham, because that would infringe on people’s rights? I doubt the Constitution would have been ratified if people had known that was the deal. Would you (hypothetically) at least support disclosure legislation, or would that have a chilling effect on the speech of Goldman Sachs?

There was no response, though that may have been because this particular thread was getting a bit old at this point.  In any case, that's when I had my epiphany. I had been incredulous that they could be this cavalier about democracy.  Then I realized: Of course they don't care about democracy! They're libertarians!  It's not that they're anti-democratic. But democracy is a form of government, and government is tyranny. Sometimes, of course, it's a necessary evil, but it's still an evil.

Well, it's a free country. If that's what you want to think, I won't report you to the authorities. The important point is that libertarians have read the Constitution to comport with their ideology. So they see the Founders as people who were primarily concerned with keeping government from getting too powerful, and with protecting individual rights.

I think that is a complete distortion of the Constitution. What was really daring and original was to set up a government where sovereignty rested in the people. Literally, no one had done that before. (To this day, sovereignty in Britain rests in Parliament.) And the Founders got the Constitution approved by having the people (white and male, but not necessarily propertied) vote on it. Democracy is the very essence of what the Constitution is about.

Whether you take the libertarian or the democratic view of the Constitution turns out to make a big difference. Citizens United is one example. If free speech is a right of individuals that overrides everything, then the rich (let's leave aside the trickier issue of corporations) have an unlimited right to buy political advertising. If you're interested in a workable democracy, on the other hand, you want to provide strong protections for unpopular speech, but also ensure that open debate is not drowned out by money.

The difference is also stark with libertarians' favorite amendment, the second. (By the way, what is the deal with gun, uh, enthusiasts? It's a piece of machinery, for crying out loud. Like a lawnmower. Why don't we have outdoor refrigerator shows? "You'll take away my dishwasher when you pry it from my cold, dead hand...") The libertarian view blithely ignores that troublesome phrase, "A well regulated Militia, being necessary to the security of a free State..." Why would the Founders have put such a phrase in an amendment intended to enshrine the right to defend one's home? To me, it seems clear that the text is talking about an individual right necessary to ensure a collective activity. Like free speech, as a matter of fact.

So it's probably a mistake to think of the current majority on the Court as being  merely conservative. Yes, they no doubt have more, uh, empathy for corporations than they minority does. But they seem to have a different view about democracy as well.


  1. Howard, I wonder what epiphanies you are gaining from the carbon cap and trade thread at VC? :-)


  2. Several, actually. I'll be posting one of them today or tomorrow.